The development of legal institutions in societies with transforming legal systems, such as the countries of Central Asia, inevitably leads to an increased litigious mentality and the wider use of the judicial mechanism of the protection of rights. Unfortu- nately, this process may sometimes be accompanied by instances of frivo- lous or vexatious litigations.

It is crucial, however, to distinguish between claims that may be dismissed by a judge and claims that have no legal basis at all. The first category refers to meritless claims where a claimant acted in good faith when filing a claim. For example, the claimant truly believed that he/she had legal grounds to protect his/her breached rights, but due to a lack of relevant legal norms or the absence of evidence he/she lost their case. In contrast, the second category refers to a claim that is meritless and is not sustained by sufficient legal grounds to be considered in a court, is not aimed at the protection of rights, or is an abuse of a right.

Frivolous litigations often arise in the sphere of consumer rights protection, where the claimant is the consumer and the respondent is a retailer, supermarket, restaurant, or dealer, etc. One such well-known story is that of Mrs Stella Liebeck, who sued McDonald’s Restaurants after she spilled hot coffee bought in a McDonald’s store in her lap, eventu- ally winning the case against the company1. This case, as well as many other subsequent cases, triggered an increase in frivolous litigations in countries all over the world. Those of Central Asia are no exception.

Case study:

Mr A purchases doughnuts from a supermarket in Tashkent. Once home, he discovers that the product’s shelf life expired one day before he made the purchase. The next day, Mr A submits a complaint to the competent state agency authorised to handle consumer protection matters. Having considered the complaint, as well as the dough- nuts themselves and the cashier’s receipt, the state agency conducts an inspection of the supermarket. Follow- ing the inspection, the manager of the store is charged with administrative sanctions. Thereafter, Mr A files a court claim whereby he seeks non-pecuniary damages for the suffering caused to him by having been sold an expired product. The claimant’s position is that, by selling him expired doughnuts, the respondent (the owner of the super- market) could have caused severe damage to his or his relatives’ health, or even life, had the doughnuts been consumed. The discovery of the sell-by date shocked him so much that he experienced significant emotional distress, which affected his health. In particular, the claimant argues that when he discovered that the doughnuts had expired his blood pressure spiked, his heartbeat became irregular and he felt dizzy. In a courtroom, however, the claimant cannot provide the court with evidence of his story and the judge dismisses the claim.

The concept of frivolous litigations is widely recognised in common law jurisdictions, whereas in civil law countries it is comparatively undeveloped.2 Separate norms regarding this subject can be found in the legislative codes of the Central Asian countries.

The civil codes of the region’s states contain principles that stipulate that civil rights must not breach the rights and interests of other persons pro- tected by the law. The good faith, rea- sonableness and fairness of the par- ticipants of civil relationships are assumed. In addition, laws restrict actions of individuals and legal enti- ties that are aimed at causing harm to another person, abusing a right in other forms, or applying a right in contravention of its purpose.3 Thus, what we will call “material norms” define the scope of what is allowed, meaning that any demand or claim for the restoration or compensation of damages must fall within certain boundaries. The law also envisages that a failure to comply with these principles may be used as grounds for the court to refuse recourse to a person breaching such principles.

Procedural rules do not provide for grounds of withdrawal from proceed- ings due to the frivolous nature of a case. Any claim, even a frivolous one, must be considered by the court if it has been filed in accordance with all the formal requirements. If, during the proceedings, the claim is not backed up by evidence and merits then the court may merely dismiss the claim. However, in the event of a frivolous case the procedural rules provide the respondent with the option to claim the recovery of damages for wasted time.4 The purpose of this rule is both to protect a party acting in good faith and to prevent persons acting in bad faith from abusing procedural rights.

It is worth noting that the recovery of damages for wasted time does not cover the legal costs incurred by the party claiming the damages. Legal costs are considered to be a separate demand. Consequently, along with the damages for wasted time, the party against whom a frivolous case has been brought may also request the compensation of legal costs, for exam- ple attorney’s fees, transport costs, etc.

It is necessary to bear in mind that a request to hold a claimant responsible for wasted time is not considered within a separate trial. This demand, as well as a demand for the compensation of legal costs, must be filed as a coun- terclaim within an ongoing frivolous case. When filing a counterclaim with stated demands, the respondent must also prove the frivolousness of the claim in accordance with the general standards of evidence, as provided for in the rules of civil procedure.5 Mean- while, the court must establish whether or not the claimant has filed the frivo- lous claim due to his/her bona fide ignorance.

The law stipulates that a party must file a counterclaim for the compensation of damages for wasted time by the end of a trial and such counterclaims are sub- ject to the court’s consideration, together with a principal claim (frivolous claim, in our case). The court is entitled to determine the amount of damages at its own discretion.

Thus, the legislations of the countries of Central Asia contain provisions protect- ing parties from frivolous claims and provide for remedy mechanisms in the event of involvement in frivolous litiga- tion. However, it is important to remember that these remedies are only available before the court renders its judgment. Once the court has ruled on the case, it is too late to demand any remedies.